The James Madison Project submitted a FOIA request to the Civil Division at the Department of Justice for records pertaining to the book "No Easy Day," a firsthand account of the death of Osama bin Laden, including analyses of taking legal action against the book's author, Mark Owen. The Civil Division indicated that a number of the records were exempt under Exemption 5 (privilege) and Exemption 7 (law enforcement records). JMP appealed the Civil Division's denial, which was upheld by the Office of Information Policy. JMP also requested records concerning the book from the Executive Office for U.S. Attorneys, the Defense Department, and the CIA. After none of those agencies responded to its request, JMP filed suit.Complaint issues: Litigation - Attorney's fees, Failure to respond within statutory time limit

FOIA Project Annotation: Judge Rosemary Collyer has dismissed nearly all the James Madison Project's FOIA claims against a number of agencies for records concerning legal analyses stemming from the release of No Easy Day, a book written by a former Navy Seal using the pseudonym Mark Owen, about the killing of Osama bin Laden. The case provides an interesting glimpse at some of the practical difficulties of suing multiple agencies who separately receive the same identical request, including how to keep track of the status of each agency's processing of the request. The James Madison Project requested legal analyses of Owen's potential liability under any non-disclosure agreement, whether information disclosed in No Easy Day remained classified, any harm assessments made as a result of the disclosure of classified information, and the legal viability of taking action against Owen or his publisher Penguin Group. The request was sent to the Executive Office for U.S. Attorneys, the Civil Division at the Justice Department, the Defense Department, the Navy, the Defense Intelligence Agency, and the CIA over a six-month period in 2014. EOUSA responded that it had searched the U.S. Attorney's Office for the Eastern District of Virginia and found no records. The Civil Division refused to process those parts of the request concerning Owen without his consent. It further withheld any legal analyses under Exemption 5 (privileges). DIA located two documents and referred one to the National Security Agency and the other to the Navy. The NSA told the James Madison Project that disclosure of the article referred to it would violate its subscription service agreement. The James Madison Project subsequently indicated it was not interested in published press reports and agreed not to pursue the NSA claim. The document referred to the Navy was disclosed in full. The rest of the agencies had failed to respond before the James Madison Project filed suit in August 2015. The James Madison Project's first hurtle involved its attempt to resurrect its claims against EOUSA and the Navy. In the case of EOUSA, since the James Madison Project had not appealed its no record response, JMP sent the agency another request. The problem it faced in relation to its request to the Navy turned out to be somewhat more complicated. After JMP filed its complaint, the Navy alleged it had no record of receiving the request. JMP insisted that it had sent the request by fax and that it had received a confirmation page on its end that the fax had been successfully sent. But Collyer indicated that "the fax confirmation page is not sufficient evidence to counter sworn evidence that the Navy has no record of receiving the No Easy Day request at issue." JMP asked Collyer to grant discovery as to why the Navy did not locate its fax request. Rejecting the request, she noted that "plaintiff does not acknowledge that the Navy never sent a letter confirming receipt of the FOIA request and that Plaintiff never inquired about the status of its request before commencing litigation." As a result, Collyer dismissed the Navy since it had not received the request. She then went on to dismiss EOUSA and DIA after finding that both had conducted adequate searches for records. Turning to the response of the Civil Division Collyer approved of its use of a Glomar response neither confirming nor denying the existence of records, as to those portions of the request pertaining to Owen. JMP argued Owen's public notoriety diminished his privacy interest. Collyer, however, explained that "Mr. Owen's privacy interests in protecting his law enforcement records from disclosure to third parties is not overcome by any public interest and the Civil Division properly withheld records related to [those portions pertaining to Owen]." JMP argued that the Civil Division's categorical descriptions of records the agency claimed were privileged under Exemption 5 was analogous to the "no, number, no list" descriptions that had been criticized by both the D.C. Circuit and the Second Circuit. Collyer rejected the claim, pointing out that "the specificity of Plaintiff's request itself identifies 'whether the contents�"as distinguished from the existence�"of the officially acknowledged records may be protected from disclosure. . .' The contents were legal analyses of the topics to which the FOIA request was directed and [the agency] described the contents of the records in [its] declaration. In contrast, a 'no number, no list' response declines to describe or enumerate the 'number, types, dates, or other descriptive information about the responsive records.'" A rarely litigated provision from the 1996 EFOIA amendments requiring agencies to identify the volume of records withheld became an issue in this case. JMP challenged the Civil Division's contention that identifying the volume of records pertaining to the various subsections of JMP's request would reveal privileged information because it would indicate the relative importance DOJ assigned to each issue. Collyer agreed with the agency, noting that "having asked for records concerning three separate issues�"legal analyses and assessments of how much of No Easy Day remained classified; how much damage or harm might result to the U.S. as a result; and how vulnerable to suit was the book's publisher�"the number of records individually responsive to each request could distinctly reveal the emphases (or lack thereof) given to each topic during the lawyers' analyses and assessments." JMP challenged the CIA's search as well as its exemption claims. Finding nothing wrong with the agency's search, Collyer turned to the exemptions. JMP said it was surprised that there would be classified information in records responsive to its FOIA request for legal analyses. But Collyer observed that "this is not surprising. Osama bin Laden was in Afghanistan and it took years of effort to pinpoint his location. Divulging the particulars of how that accomplished could reasonably harm the United States." JMP argued the agency had failed to show that records it withheld under Exemption 5 were both predecisional and deliberative. Collyer pointed out that "the [agency's] declaration is extremely clear that the records are drafts used in pre-decisional discussions; draft records have routinely been protected from FOIA using the deliberative process privilege." The only agency that failed to satisfy Collyer concerning its processing of JMP's request was the Department of Defense. She explained that "DoD has not even indicated that a search was conducted, but instead attempts a Glomar response that all records that might be located would be exempt under Exemption 5 or 6." Noting that "DoD's categorical use of [Exemptions 5 and 6 is] inappropriate," Collyer noted that "DoD cannot know, without searching whether some of its responsive records may contain segregable, non-exempt information. . ." She added that "DoD does not argue that all documents responsive to Plaintiff's No Easy Day request would contain personally identifying information of DoD personnel and in fact, without searching, DoD cannot aver that any responsive documents contain such information. DoD's categorical use of Exemption 5 and 6 are insufficient responses to Plaintiff's No Easy Day request."
Issues: Exemption 5 - Privileges, Exemption 1 - Harm to national security

FOIA Project Annotation: Judge Rosemary Collyer has ruled that the Defense Department conducted an adequate search for records concerning legal analyzes of the harm to national security by the disclosures made in No Easy Day, an unauthorized account of the killing of Osama bin Laden by one of the participants. The James Madison Project submitted requests to the Civil Division at the Justice Department and to the Department of Defense. The Defense Department initially suggested that a search was unnecessary because all responsive records were exempt under Exemption 5 (privileges) or Exemption 6 (invasion of privacy). In her prior opinion in the case, Collyer found such a response inadequate and told the agency to supplement its affidavits. In its subsequent affidavits, the agency explained that the relevant attorneys in the Office of General Counsel identified all information, including emails, likely to be responsive to the request. Those records were then reviewed and withheld under Exemption 5 and Exemption 6. JMP argued that the agency should have conducted a keyword search to locate all responsive records rather than consult individual attorneys who had been involved in the review of No Easy Day. Collyer disagreed. She noted that "although a reasonable search of electronic records may necessitate the use of search terms in some cases, FOIA does not demand it in all case involving electronic records." JMP pointed to Toensing v. Dept of Justice, 890 F. Supp. 2d 121 (D.D.C. 2012), in which the court had rejected a search based solely on the personal knowledge of an employee. But Collyer noted that JMP's reliance on Toensing was misplaced. She explained that "an agency cannot fail to search at all based upon alleged personal knowledge, but courts have not found that a particular type of search is required by FOIA, merely that a reasonable search must be conducted; and, in this case, the DOD did conduct a search." She indicated that "in this case, the responsive files were readily identifiable without search terms and the records in all the files were individually reviewed." Since JMP had acknowledged that both Exemption 5 and Exemption 6 applied, Collyer granted the agency's motion for summary judgment.
Issues: Search - Reasonableness of search

SUMMONS (5) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (md) (Entered: 08/13/2015)

2015-09-09

3

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/24/2015. Answer due for ALL FEDERAL DEFENDANTS by 9/23/2015. (Moss, Bradley) (Entered: 09/09/2015)

MINUTE ORDER adopting 7 Joint Proposed Dispositive Motion Briefing Schedule. Defendants' dispositive motion is due February 4, 2016. Plaintiff will file any opposition by March 7, 2016. Defendants will file any reply by March 17, 2016. Signed by Judge Rosemary M. Collyer on 10/23/2015. (lcrmc3) (Entered: 10/23/2015)

2015-10-23

Set/Reset Deadlines/Hearings: Defendants' Dispositive Motion due by 2/4/2016. Response to Dispositive Motions due by 3/7/2016. Reply to Dispositive Motions due by 3/17/2016. (cdw) (Entered: 10/23/2015)

MINUTE ORDER granting 8 Consent Motion for Extension of Time. Defendants' dispositive motion is due February 11, 2016. Plaintiff's opposition is due March 14, 2016. Defendants' reply is due March 24, 2016. Signed by Judge Rosemary M. Collyer on 1/29/2016. (lcrmc3) (Entered: 01/29/2016)

MINUTE ORDER granting in part and denying in part 10 Unopposed Motion for Extension of Time. The deadline for Plaintiff to oppose Defendants' 9 Motion for Summary Judgment, and for Plaintiff to file a motion for leave to file an amended complaint, is March 24, 2016. The deadline for Defendants to file a reply in support of its 9 Motion for Summary Judgment, and to oppose Plaintiff's motion for leave to file, is April 14, 2016. The deadline for Plaintiff to file a reply in support of its motion for leave to file is April 21, 2016. Signed by Judge Rosemary M. Collyer on 2/29/2016. (lcrmc3) (Entered: 02/29/2016)

2016-02-29

Set/Reset Deadlines: Summary judgment motion response and motion for leave to file an amended complaint due 3/24/2016. Reply in support of motion for summary judgment and response to motion for leave to file due 4/14/2016. Reply in support of motion for leave to file due 4/21/2016.(zmm) (Entered: 02/29/2016)

ORDER. Defendants' 9 Motion for Summary Judgment is granted in part and denied in part without prejudice. Plaintiff's 13 Motion for Leave to File Amended Complaint is denied. Judgment is entered in favor of Defendants on Counts One, Two, Four, Five, and Six. Count Three against Department of Defense remains. Signed by Judge Rosemary M. Collyer on 9/22/2016. (DAS) (Entered: 09/22/2016)

2017-04-21

MINUTE ORDER requiring the Department of Defense to file a status report no later than May 5, 2017. Signed by Judge Rosemary M. Collyer on 4/21/2017. (DAS) (Entered: 04/21/2017)

Memorandum in opposition to re 24 MOTION for Leave to File Sur-Reply in Opposition to Defendant Department of Defense's Renewed Motion for Summary Judgment filed by DEPARTMENT OF DEFENSE. (Parker, Ryan) (Entered: 06/02/2017)

2017-06-02

MINUTE ORDER granting 24 Motion for Leave to File Surreply. Plaintiff's Surreply shall be filed no later than June 9, 2017 and shall not exceed 5 pages in length. Defendant Department of Defense may file a Sur-Surreply no later than June 16, 2017 not exceeding 5 pages in length. Signed by Judge Rosemary M. Collyer on 6/2/2017. (DAS) (Entered: 06/02/2017)

ORDER requiring Defendant Department of Defense to file a supplemental declaration no later than June 30, 2017 and permitting Plaintiff to file a response to the supplemental declaration of no more than 5 pages no later than July 10, 2017. See Order for details. Signed by Judge Rosemary M. Collyer on 6/21/2017. (DAS) (Entered: 06/21/2017)

ORDER granting 20 Department of Defense's Renewed Motion for Summary Judgment. Judgment is entered in favor of the Department of Defense on the only remaining count, Count Three. This case is closed. Signed by Judge Rosemary M. Collyer on 7/25/2017. (DAS) (Entered: 07/25/2017)